Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: December 17, 2021
CASE NO(S).: PL200623
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Larry Ross
Subject: Application to amend Zoning By-law No. 2008-66P - Neglect of the Town of Huntsville to make a decision
Existing Zoning: Rural Residential (RR), Rural Residential Special Exception - 0758 (RR-0758), Open Space Type Two (O2), and Natural Resource (NR)
Proposed Zoning: Residential One with exceptions (R1-special), Conservation (C), and Open Space (O2)
Purpose: To permit a twenty-one (21) lot plan of subdivision consisting of single detached homes and common element blocks
Property Address/Description: 173 and 194 Clarkes Lane
Municipality: Town of Huntsville
Municipality File No.: Z/17/2020/HTE
OLT Case No.: PL200623
OLT File No.: PL200623
OLT Case Name: Ross v. Huntsville (Town)
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Larry Ross
Subject: Proposed Plan of Subdivision - Failure of the District of Muskoka to make a decision
Purpose: To permit a twenty-one (21) lot plan of subdivision consisting of single detached homes and common element blocks
Property Address/Description: 173 and 194 Clarkes Lane
Municipality: District of Muskoka
Municipality File No.: S-2020-06
OLT Case No.: PL200623
OLT File No.: PL210133
Heard: November 25, 2021 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| 2152900 Ontario Inc. | Stephen Watt |
| District of Muskoka | Jamie Clow |
| Town of Huntsville | In absentia |
DECISION DELIVERED BY BRYAN W. TUCKEY AND INTERIM ORDER OF THE TRIBUNAL
1A settlement hearing in the matter of appeals to the Ontario Land Tribunal by 2152900 Ontario Inc. (“Applicant”) against the Town of Huntsville (“Town”) and the District of Muskoka (“Muskoka”) after the approval authority did not deal with the Applications within the statutory time frames. These proceedings were commenced under s. 34(11) and s. 51(34) of the Planning Act and concern a development proposal for the property known municipally as 173 and 194 Clarkes Lane in the Town and Muskoka (“subject lands”).
2The appeals relate to an application to amend Zoning By-law No. 2008-66P (“ZBA”) and an application for a proposed plan of subdivision (“PoS”) to permit a development proposal for a 21-lot Plan of Subdivision consisting of single detached homes, and common element blocks for internal condominium roads and an open space area to be created through a Plan of Common Area Condominium description (“PoC”).
3At the settlement hearing, the Applicant and Muskoka being the approval authority for both the PoS and PoC are in attendance. The Town being the approval authority for the ZBA is not represented. All registered participants are also in attendance.
4Subsequent to the July 19, 2021 Case Management Conference (“CMC”), the Tribunal received revised participant statements from all the registered participants as well as statements from an additional nine individuals living in the area who are not registered participants.
5The Tribunal has considered all of these statements in this decision save and except the September 2, 2021 revised participant statement of Chris Madej because it provides and makes reference to a planning report and planning opinion extracted from that report. The Tribunal noted that in keeping with the Ontario Land Tribunal – Rules of Practice and Procedure (“Rules”) s. 8.1 (e) only parties may “present and examine witnesses and Cross examine witnesses not of like interest”. Mr. Madej has registered as a participant therefore a participant statement that references an untested planning report or planning opinion is not considered admissible in these proceedings.
MINUTES OF SETTLEMENT
6The Tribunal is in receipt of executed Minutes of Settlement (“MOS”) between 2152900 Ontario Inc. and Muskoka dated November 17, 2021 in which both parties “agree to settle the Proceedings by way of this Minutes of Settlement”. The MOS made specific reference to the following request of the Tribunal:
a. approval of the conditions of draft PoS and PoC as found in Exhibit 9, Schedule A, Exhibit C; and
b. approval of the implementing ZBA of the Town necessary for the PoS and PoC to proceed found in Exhibit 9, Schedule A, Exhibit D.
7The Tribunal had the benefit of testimony from two witnesses. This decision includes oral testimony and material found in their individual affidavits. The witnesses are: Savas Varadas for the Applicant (Affidavit Exhibit 9, Schedule A) and Lisa Marden for Muskoka (Affidavit Exhibit 10). Both witnesses are qualified to give expert opinion evidence in the discipline of Land Use Planning. Mr. Varadas provided to the Tribunal required detailed planning evidence.
SITE AND AREA ANALYSIS
8The subject lands consist of two parcels municipally known as 173 and 194 Clarkes Lane in the Town. In their entirety, the subject lands are approximately 43.8 hectares (“ha”) in area with a frontage of approximately 130 metres (“m”). Access is by way of Clarkes Lane which is a public roadway owned and maintained by the Town. The subject lands are vacant and natively forested. There is a roughed in series of roadways necessary to access the entire property for the purpose of preparing necessary supporting technical studies.
9The surrounding area predominantly consists of residential and rural uses with an existing residential subdivision immediately adjacent to the subject lands.
BACKGROUND AND PROPOSAL
10As previously noted, the Applicant is requesting a ZBA, proposed PoS to permit a development consisting of 21 single detached homes, and common element blocks for internal condominium roads and an open space area to be created through a PoC. There are no substantive changes from the original PoS or PoC submitted to Muskoka.
11The Applicant submitted applications for PoS and PoC to Muskoka in April 2020 and these applications were deemed complete in May 2020 with the appropriate Notice of Complete Applications circulated on June 9, 2020.
12The Applicant filed an application for a ZBA to the Town in April 2020. This application included the necessary ZBA to implement the PoS as well as for the future development of the subject lands being subject to a Holding (“H”) designation. The application was deemed complete by the Town on May 14, 2020.
13In support of the ZBA application, the Applicant submitted a comprehensive series of reports to assist the Town and Muskoka in their evaluation of the applications. Reports included:
a. an Environmental Impact Study and Addendum (“EIS”) by FRi Ecological Services in December 2019. These studies were peer reviewed and a revised EIS and Map Series was submitted in September 2020. Subsequent to meeting with participants, FRi completed and addendum response to identified concerns;
b. a Hydrogeologic Assessment Repot by GAMAM Consultants Inc in January 2020 which was peer reviewed;
c. a Storm Water Management Brief and Construction Management Plan in April 2020 and a Development and Septic Envelope Plan in October 2021 both by Pinestone Engineering Ltd.; and
d. a Planning Justification Report in April 2020 which was revised in July 2020.
14Mr. Varadas advised the Tribunal that peer reviews as noted above were undertaken on behalf of Muskoka and all recommendations made by the peer reviewers are agreed to and implemented by the original report authors.
PLANNING INSTURMENTS
15The Tribunal has the following planning instruments before it for consideration of the proposed settlement.
a ZBA to the Town’s Zoning By-law No. 2008-66P, as amended, to rezone the subject lands from a Rural Residential (RR) Zone, a Rural Residential (RR) Zone with Exception “0758”, an Open Space (OS) Zone and a Natural Resource (NR) Zone to a Residential One (R1) Zone with Exception “XXXX”, a Residential One Holding (R1-H) Zone with Exception “XXXX”, an Open Space (OS) Zone, and a Conservation (C) Zone (Exhibit 9 Schedule A Exhibit D);
a ZBA to the Town’s Zoning By-law No. 2008-66P, as amended, to delegate authority to the Director of Development Services to remove the Holding - H provision from the future development portions of the subject lands when the H conditions have been met. (Exhibit 9, Schedule A, Exhibit D). The Tribunal is assured by both planning witnesses the delegation of this authority is the Town’s normal practice;
a draft PoS Muskoka File No. S2020-06 (Exhibit 11) along with Conditions of Draft Approval (Exhibit 9, Schedule A, Exhibit C); and
a draft PoC Muskoka File No. C2020-07 (Exhibit 12) along with Conditions of Draft Approval (Exhibit 9, Schedule A, Exhibit C).
16It is noted by the Tribunal that the Common Element Condominium Description appeal that was filed is not specifically noted as part of the Tribunal proceedings in this matter. It is clear from the correspondence of both parties found in the Municipal Record and oral evidence from both planners that the Common Element Condominium Description in Muskoka File No. C2020-07 with respect to 2152900 Ontario Inc. is part of the series of appeals with respect to this proceeding. Both parties consented to have the matters relating to the PoC adjudicated at this settlement hearing.
17The Tribunal agrees. A full adjudication of all matters at this settlement hearing is in keeping with Rule 1.3 of the Ontario Land Tribunal Rules which states: “These Rules shall be liberally interpreted to offer the best opportunity for a fair, just, expeditious and cost-effective resolution of the merits of the proceedings”.
LAND USE POLICY
Provincial Policy
18Mr. Varadas referenced s. 2 of the Planning Act that sets out the matters of Provincial Interest that planning authorities shall have regard to. Subsections relevant to the proposal are s. 2 a), d), e), h), j), l), and p). He opined that the proposed development has regard to the matters of Provincial interest.
19The planner then took the Tribunal through how he came to his opinion that the proposed development is consistent to the Provincial Policy Statement 2020 (“PPS”). Mr. Varadas’ evidence reviewed the PPS in its entirety and is therefore detailed in his efforts to demonstrate consistency. He made reference to themes including:
a. promoting efficient development and land use patterns to ensure the efficient use of land and resources;
b. the integration of land use planning, growth management to minimize land consumption and servicing costs in a way that is appropriate for and will efficiently use infrastructure and public service facilities;
c. ensuring appropriate development standards to facilitate intensification, redevelopment and a compact form within settlement areas designated in an official plan for growth over the long-term planning horizon;
d. to provide for an appropriate range and mix of housing options and densities required to meet the needs of current and future residents. The proposal serves to assist the Town to maintain a minimum of 15 years of lands designated and available for residential development and at least a three-year supply of available residential units;
e. where municipal or communal water and sewage facilities are not available individual on-site sewage and water services may be used subject to suitable site conditions. Within settlement areas private servicing may only used for infilling and minor rounding out of existing development as being proposed by the Applicant. The hydrogeological reporting analysed water quality and quantity using several test wells which determined there would be no adverse effect on neighbouring wells. Private individual sewage systems are based on best management practices;
f. the Applicant has planned for and can be accommodated on-site, appropriate provisions for stormwater management in keeping with the storm water management brief. Conclusions are all stormwater management can be addressed and will have no adverse impacts on adjacent properties;
g. an important consideration in this matter is the protection of natural features over the long-term. The Applicant completed a series of EIS reports, addendums and revisions that were requested by peer reviewers or participants. The proposed development ensures that: all significant natural environment features are protected for the long-term, there is no site alteration or development in significant wildlife habitat or significant areas of natural and scientific interest and in fish habitat, there are appropriate buffers around all significant features within the PoS. The EIS also specifically targeted a number of threatened and endangered species and the recommended buffers and guidelines related to the timing of construction all of which have been adopted by the Applicant; and
h. a review of Muskoka’s mapping of archeological potential found a modest sized area of ‘moderate’ to ‘high’ potential. Most of the identified area is protected from site alteration as a result of EIS recommended buffers so it was determined that further archeological investigation was not warranted.
20Mr. Varadas is of the opinion that the proposed development and the planning instruments required to implement the proposal have appropriate regard to s. 2 of the Planning Act and is consistent with the policies of the PPS. Ms. Marden concurs with Mr. Varadas’ planning opinion with respect to the relevant provincial policies.
21The Tribunal accepts the uncontested evidence of Mr. Varadas and concurred by Ms. Marden with respect relevant provincial legislation and policy in its entirety.
Municipal Policy
22The subject lands are designated as “Community Areas” on Schedule “A” to the District of Muskoka Official Plan (“DMOP”) and is locally known as “Utterson”. The objectives for land within a Community Areas designation relate to the recognition of these areas as service nodes for the Rural and Waterfront areas; encouraging the development of complete small-scale communities; the provision of an appropriate range and mix of housing; and making efficient use of infrastructure and public service facilities (s. 32.1).
23Mr. Varadas is of the opinion the proposal meets the objectives of the Community Areas designation of Utterson as it is a service node for the surrounding Rural and Waterfront areas and it will expand on the existing small-scale residential community especially when combined with the nearby commercial land uses. There is no expansion of public infrastructure required, but the proposal will contribute to the efficient use of existing infrastructure and public services. The proposal adds to the Town’s portfolio of housing options.
24Mr. Varadas in his evidence noted that the DMOP follows the themes and is designed to be consistent with the PPS. Therefore, much of his analysis is similar to that of the PPS. Key elements of the DMOP where in his opinion the proposal illustrates conformity include:
a. Community Areas shall be limited to infill and minor rounding out of existing development that are sustainable on individual on-site sewage and individual on-site water services, thereby avoiding the need for unjustified expansion of municipal services (s. J2.2);
b. the protection of natural heritage features is an important objective of the DMOP (s. C1). The Applicant completed a comprehensive EIS along with requested supplementary analysis and has adopted all the recommendations of these analysis. By doing so, the proposal meets the relevant Natural Heritage objectives (s. C1.1 b)) including a comprehensive impact assessment of adjacent natural heritage features and areas; the protection and enhancement of the natural environment; maintains natural water form and flow; maintenance or restoration of ecological and hydrological functions; preserves biodiversity; has proper setbacks and buffering from natural heritage features; and provided opportunities for passive outdoor recreation;
c. the EIS served as a comprehensive impact analysis along with recommending appropriate mitigation measures that were accepted by the Applicant and included in the PoS. In keeping with DMOP policy, the EIS properly mapped and inventoried features; development and site alteration is restricted; the presence of significant wildlife habitat and the habitat of endangered and threatened species was assessed and protected; the existing stream has been evaluated with respect to type of fish habitat; and appropriate on-site buffers have been established;
d. a comprehensive hydrogeological study (and supplementary analysis) of the proposal identified mitigation measures to ensure the protection of surface and subsurface water features. A storm water management report compared pre- and post- development stormwater flow rates and recommended suitable quality and quantity measures that are to be implemented during construction;
e. the Growth Management policies of the DMOP are found in s. D. The proposed development is within a settlement area which are the focus of year-round population and dwelling growth; is in a Community Areas where municipal water and sewage systems are not available so new development is intended to be on private servicing; new development is intended to occur adjacent to an existing built-up area to ensure it is a logical extension thereof; is a compact form efficiently using land and resources; contributes to the range of housing choices and provides suitable access that is in keeping with the requirements of all emergency and municipal services;
f. the DMOP has a series of policies related to the provision of private water and sewage facilities when municipal services are not existing or planned (s. D15.5). There are no municipal water and sewage services available in Utterson therefore the private services are the only feasible option. The proposed land uses are low-intensity single detached dwellings with no expected environmental or health concerns. The hydrogeological study demonstrated the proposed lot sizes are sufficient in area to accommodate private water and septic systems with no expectation of the need to haul excess sewage;
g. the DMOP includes a number of design guidelines for PoS and PoC to consider (s. D20.6) but does recognize that smaller in scale subdivisions may struggle to achieve all of the listed criteria. While the proposed PoS is not able to create an interconnected pattern of roads and pathways, it has given special consideration of the subject lands topography and natural features; the proposed road system accentuate nature while providing excellent views and vistas and the stormwater techniques proposed include a variety of low-impact mitigative measures;
h. the proposed development supports the importance of Muskoka’s communities for its economic growth; and
i. any potential archeological are protected by proposed stream buffers and the wildland fire risk is assessed as being low.
25Mr. Varadas opined that the proposed instruments and development conforms to the DMOP. The Tribunal is advised by Ms. Marden that she concurs with Mr. Varadas’ planning opinion with respect to the relevant policies of the DMOP.
26Mr. Varadas gave considerable evidence with respect to the Town of Huntsville Official Plan (“HOP”) because the Tribunal did not have the benefit of planning evidence from the Town.
27The planner noted the subject lands are located within the Community Settlement Area of Utterson illustrated in Schedule “A” and designated as Community Residential as illustrated in Schedule “B-2” of the HOP. Low density residential such as single detached dwellings are uses permitted within these designations. The HOP is in conformity with the DMOP therefore much of the policy direction of the HOP is similar and complementary to those found in the DMOP.
28The planner outlined that many Natural Heritage (s. B2) policies which serve to protect natural heritage features (wetlands); fish habitat; habitat of threatened and endangered species; and significant wildlife habitat. HOP’s general policy direction is a requirement to identify and protect these features and habitats when a development is proposed.
29Mr. Varadas referred to the EIS that served to identify, evaluate, and make recommendations for the protection of features on the subject lands to ensure conformity to the HOP. The Applicant implemented the EIS recommendations including the following: establishment of a 30 to 45 m setback from the existing cool water stream and the lands are suitable for development and illustrate no extreme or high-risk conditions worthy of note.
30Mr. Varadas spoke to various policies found in s. C.2 where the Utterson Community Settlement Area is one of the areas intended to be the focus of year-round population and employment growth. The proposed development meets the following policy directions including:
a. is a small scale subdivision that can be considered as a “minor rounding out” of lands that are located within existing settlement boundaries;
b. the character of Utterson is maintained because the proposal is in the form of a minor rounding out of the community in a compact form;
c. the proposed land uses are similar to the existing residential land uses located on Clarkes Lane and the dwellings to be constructed will be in comparable in size and massing of the existing residential development. The HOP contains a series of criteria that must be considered when evaluating new development and how it fits within existing community character (s. C4.2.11). The size and shape of lots, as well as the expected massing and scale of dwellings will be consistent with those existing in the area; access is from either a public or private road designed to accommodate emergency vehicles; and open space areas and buffers are proposed in an effort to mitigate visual impacts;
d. may be served by individual on-site water and sewage services with an approved exception to the method of calculating lot area to encourage a more compact urban form. With this exception all lots met the minimum 0.4 ha lot area and 30 m lot frontage requirements of the HOP (s. C4.3.1);
e. policy supports the implementation of a private roadway for access to the proposed lots within the common elements PoC; and
f. the proposed small scale of the PoS makes road linkages nearly impossible but will ensure the necessary community cohesiveness as advocated by the HOP.
31The planner described the various technical reports that are required in support of any development within the Town (s. D6.4.1). The detail of the various technical studies are found earlier in this decision and included a review of the subject lands archeological potential; a stormwater management and construction mitigation plans, which take into consideration erosion and sediment control, the use of on-site infiltration measures and landscape-based stormwater management practices; the sufficiency of private servicing and a hydrogeological assessment to ensure adequate water supply and an assurance there will be no cross-contamination or negative impact on the groundwater supply. The necessary studies were prepared, peer reviewed as required and approved by either Muskoka or the Town during their review of the Applicant’s proposal.
32The proposal is subject to s. F1.5.1 of the HOP requiring a proposal of this type to developed by way of a registered PoS or PoC.
33Mr. Varadas is of the opinion that the proposed instruments and development conforms to the HOP. The Tribunal is advised by Ms. Marden that she concurs with Mr. Varadas’ planning opinion with respect to the relevant policies of the HOP.
34The Tribunal accepts the uncontested evidence of Mr. Varadas and concurred by Ms. Marden with respect to the proposed settlement being in conformity with relevant municipal documents in its entirety.
DRAFT PLAN OF SUBDIVISION AND DRAFT PLAN OF COMMON ELEMENT CONDOMIUM
35Mr. Varadas reviewed the proposed PoS (Exhibit 11) against the criteria of s. 51(24) of the Planning Act. There is a total of 13 criteria a municipal authority must have regard to ensuring the health, safety, convenience, accessibility for persons with disabilities and welfare of the present and future inhabitants of the municipality. He made specific reference to s. 51(24) (a), (b), (c), (d), (d.1), (e), and (f) which in his view are most relevant.
36Mr. Varadas is of the opinion that the proposed development has regard for the matters of provincial interest as set out in s. 2 of the Planning Act; is not premature as the lands have been slated for development and conform to policy direction of the DMOP and HOP; is compatible and comparable to existing development in the surrounding area, and will be more affordable when compared with urban centre lots because development charges and utility costs will be lower than in those areas of Muskoka.
37There is a total of 17 conditions approval that have been written jointly by Muskoka staff and the Applicant. Ms. Marden in her evidence noted many of the conditions are standard conditions required by Muskoka, but staff are careful to ensure all conditions are relevant, reasonable, and necessary for the proper implementation of the PoS. They are also specifically tied directly to the draft PoS before the Tribunal. The Conditions of Draft Approval include matters such as parkland dedication, requirements for necessary infrastructure, a variety of agreement requirements with the Town such as Site Plan Control and requirements of the Simcoe Muskoka Catholic District School Board.
38Muskoka and the Applicant are committed to work in tandem to implement the Conditions of Draft Approval for the PoS.
39Both planners opined that the draft PoS complies with the criteria identified in s. 51(24) of the Planning Act and the conditions of Draft Plan Approval are reasonable.
40The Tribunal accepts the evidence of the planners in its entirety. The draft PoS, subject to the Conditions of Draft Plan Approval, has had appropriate regard to the criteria set out in s. 51(24) of the Planning Act.
41Pursuant to s. 51(25) of the Planning Act, the Tribunal finds the Conditions of Draft Approval to be reasonable and appropriate for the proposed development.
42The Tribunal is presented with a PoC (Exhibit 12) along with Conditions of Draft Approval. There is a total of 14 conditions that have been written jointly by Muskoka staff and the Applicant. Ms. Marden in her evidence noted many of the conditions are standard conditions required by Muskoka, but staff are careful to ensure all conditions are relevant, reasonable, and necessary for the proper implementation of the PoC that is before the Tribunal. The Conditions of Draft Approval include matters such as: access arrangements, necessary conveyances, requirements related to necessary infrastructure and a variety of agreement requirements with the Town.
43Both planners opined that the draft PoC and the Conditions of Draft Approval are relevant, reasonable, and necessary for the proper implementation of the proposed development. The Tribunal agrees.
TOWN OF HUNTSVILLE ZONING BY-LAW
44The subject lands are zoned in the Town’s Zoning By-law (“ZBL”) No, 2008-66P as Rural Residential Special Exception – 0758 (RR-0758), Open Space (O2) and Natural Resource (NR). The existing zoning establishes principle of development to include rural residential uses. The proposed instruments would modify existing zoning to (Exhibit 9, Schedule A, Exhibit D):
a. a Conservation (C) zone to include all of the natural heritage features identified in the EIS;
b. an Open Space (O2) zone for areas where no development is proposed but is not for the protection of identified natural features;
c. a Residential One with necessary Exceptions being a minimum lot frontage of 30 m, a minimum lot area of 0.4 ha and the lot area to be calculated based on total lot area; and
d. a Holding provision that is applied to the retained lands.
45Mr. Varadas noted that the 2019 HOP states that the minimum lot area and frontage requirements are 0.4 ha and 30 m respectively but the Town’s ZBL has not yet been updated to reflect this change in policy.
46The planner also prepared a By-law delegating the removal of the Holding – “H” provision on the retained portion of the subject lands. The delegation by-law gives the authority to the Director of Development Services lift the H provision when he/she is satisfied that conditions have been met. The Tribunal is advised in evidence by both planners that this is a standard Town practice.
47Mr. Varadas opined that “the lands have already been pre-designated Community Residential in the Official Plan and the EIS has investigated the area, identified natural heritage features, and made recommendations for their protection, there does not appear to be any reason not to zone these lands accordingly for their intended use at this time”.
48In conclusion Mr. Varadas opined that the proposed PoS, Condominium Description and ZBA have regard to the matters of provincial interest found in s. 2 of the Planning Act, are consistent with the PPS 2020, conform to the DMOP, conform to the HOP, meet the intent of the Town’s ZBL No. 2008-66P and represents good planning.
PARTICIPANT STATEMENTS
49The Tribunal in its July 27, 2021 Decision was disappointed with the lack of public consultation by the Town in its review of the Applicants proposed development. The Tribunal directed that:
a. the planner(s) will have carefully reviewed the written statements submitted by the Participants to the proceedings;
b. the planner(s) will have held a meeting with the Participants to hear, understand and secure any required clarification relating to the Participants’ Statements;
c. the planner(s) will have considered the Participants’ Statements in formulating the opinions expressed in the planning reports relating to the Settlement Agreement which are submitted to the applicable Municipal Committee or Council and to the Tribunal; and
d. any planning affidavit presented to the Tribunal in support of the Settlement Agreement will confirm the review and consideration of the Participants Statements filed with the Tribunal.
50In Ms. Marden’s evidence, the Tribunal learned that both she and Mr. Varadas reviewed the participant statements and held two different meetings with the registered participants electronically to hear comments and to secure any required clarification. Ms. Marden stated in her witness statement that “the majority of the Participants comments and concerns have been addressed through the inclusion of specific Conditions of Draft Approval, which will require further implementation through the Area Subdivision Agreement and through site plan control at the time of development to the lots”. Muskoka requested additional supporting documentation from the Applicant to better inform the proposed settlement and the construction of the necessary planning instruments.
51Mr. Varadas prepared a submission matrix of actions taken in an effort to respond to participants’ concerns (Exhibit 9, Schedule A, Exhibit E). He noted that both municipal plans direct growth to Community Areas albeit at a reduced capacity where municipal servicing is not available; proposed Conditions of Draft Approval will implement the recommendation of the required supporting studies and peer review comments, and the subdivision agreement with the Town will further implement lot specific requirements.
52The Tribunal is satisfied that the planners for the Applicant and Muskoka have appropriately met the direction found in the July 27, 2021 Decision. The Town will consider participants remaining comments and concerns when considering site plan control requirements.
TRIBUNAL FINDINGS
53The Tribunal accepts the uncontested evidence of Mr. Varadas concurred by Ms. Marden and finds the proposed instruments have regard to the matters of provincial interest found in s. 2 of the Planning Act, are consistent with the PPS 2020, conform to the DMOP, conform to the HOP and meet the intent of the Town’s ZBL No. 2008-66P. They represent good planning and are in the public interest.
54The Tribunal finds that the draft PoS, subject to the Conditions of Draft Plan Approval, has had appropriate regard to the criteria set out in s. 51(24) of the Planning Act and the Conditions of Draft Approval to be reasonable and appropriate for the proposed development pursuant to s. 51(25) of the Planning Act.
55The Tribunal finds that the Town and Muskoka have extremely well established and current planning policy for the subject lands and surrounding area. Both have followed a careful, complete, and comprehensive planning review of the proposed settlement and instruments before the Tribunal.
56The Tribunal finds that the ZBA, PoS and PoC align with the established principles of relevant provincial policy, the DMOP and the HOP which include the following themes:
a. it promotes an efficient development and land use pattern thereby ensuring the efficient use of land and resources;
b. promotes the integration of land use planning, growth management to minimize land consumption and servicing costs in a way that is appropriate for and will efficiently use infrastructure and public service facilities;
c. the proposed instruments ensure appropriate development standards to facilitate a development that is compact in form within a settlement area designated in both the DMOP and the HOP for growth over the long-term planning horizon;
d. is in an area designated as a Community Settlement Area of Utterson and is represents a ‘minor rounding out’ of existing development. Low density residential such as single detached dwellings are uses are permitted within these designations.
e. The character of Utterson is appropriately maintained as the size and shape of lots and the expected massing and scale of dwellings will be consistent with those existing in the area; access is from either a public or private road designed to accommodate emergency vehicles; and open space areas and buffers are proposed in an effort to mitigate visual impacts;
f. contributes to the range of housing choice and densities in the Town required to meet the needs of current and future residents;
g. is to assist the Town in maintaining a minimum of 15 years of lands designated and available for residential development and at least a three-year supply of available residential units;
h. the Applicant has gone to great lengths to ensue proper and adequate protection of the subject land’s natural heritage features. The Applicant completed a comprehensive EIS along with requested supplementary analysis and has adopted all the recommendations of the relevant report analysis. By doing so, the proposal meets the germane Natural Heritage objectives of the PPS, DMOP and the HOP. Relevant themes include the completion of a proper impact assessment of adjacent natural heritage features and areas; the protection and enhancement of the subject lands natural environment; maintaining natural water form and flow; the maintenance of important ecological and hydrological functions; preserving the biodiversity on the subject lands; implements proper setbacks and buffering from natural heritage features; and has provided opportunities for passive outdoor recreation;
i. it can be appropriately serviced by individual on-site sewage and individual on-site water services thereby avoiding the need for unjustified expansion of municipal services. The hydrogeological study demonstrated that the proposed lot sizes are sufficient in area to accommodate private water and septic systems with no expectation of the need to haul excess sewage nor will there be negative impacts to neighbouring well or the area groundwater; and
j. any potential archeological are protected by proposed stream buffers and the wildland fire risk is assessed as being low.
57The Tribunal finds that the proposed ZBA and delegation of authority by-law (Exhibit 9, Schedule A, Exhibit D), draft PoS (Exhibit 11) with the Conditions of Draft Approval (Exhibit 9, Schedule A, Exhibit C) and the Draft PoC (Exhibit 12) including Conditions of Draft Approval as presented are appropriate to ensure the proper implementation and development of the proposed settlement.
58The Tribunal agrees that the H provisions found in the ZBA appropriately describe conditions that the Applicant must meet in order for the H provisions to be lifted at an appropriate time and the delegation to the Director of Development Services in keeping with the Town’s existing practice are appropriate.
59The Tribunal finds that the proposed settlement and development as presented is an appropriate and desirable addition to the area, represents good land use planning, is in conformity with and meets all of the objectives of requisite public policy and is in the public interest.
INTERIM ORDER
60Accordingly, the Tribunal Orders.
61THAT the appeals pursuant to s. 34 (11) of the Planning Act are allowed in part and:
a. the proposed amendment to the Town of Huntsville Zoning By-law No. 2008 – 66P, as amended, is approved in principle in the manner set out in Attachment 1 to this Interim Order; and
b. the proposed amendment to the Town of Huntsville Zoning By-law No. 2008 – 66P, as amended, is approved in principle in the manner set out in Attachment 2 to this Interim Order.
62THAT the Final Order amending the Town of Huntsville Zoning By-law No. 2008-66P, as amended, is withheld by the Tribunal pending written confirmation from the District of Muskoka Solicitor that the Town has assigned administratively appropriate By-law Numbers to both By-laws and Exception Numbers where applicable within 30 days of the issuance of the Interim Order. The Zoning By-laws will be provided to the Tribunal for review and approval and will be attached to the Final Order.
63THAT the draft Plan of Subdivision (District of Muskoka File No. S2020-06) appended to this Order as Attachment 3 is approved, subject to the Conditions of Draft Approval appended to this Order as Attachment 4.
64THAT the draft Plan of Common Element Condominium (District of Muskoka File No. C2020-07) appended to this Order as Attachment 5 is approved, subject to the Conditions of Draft Approval appended to this Order as Attachment 6.
65THAT pursuant to s. 51(56.1) of the Planning Act, the District of Muskoka shall be the approval authority for the purposes of clearing the draft plan conditions and the final approval of both the Plan of Subdivision and the Plan of Common Element Condominium.
66THAT upon receipt of such written confirmation with respect to paragraphs 61 and 62, the Final Order will issue.
67The Panel Member will remain seized for the purposes of the issuance of the Final Order and with respect to the Provisional Interim Orders set out above. In the even any matters arise, which are related to the implementation of this Interim Order, the Tribunal may be spoken to.
“Bryan W. Tuckey”
bryan w. tuckey
MEMBER
Ontario Land Tribunal
Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.
PL170905 – Attachment 1
PL170905 – Attachment 2
PL170905 – Attachment 3
PL170905 – Attachment 4
PL170905 – Attachment 5
PL170905 – Attachment 6